McKisick v. Forrest City Arkansas School District No. 7 Appellants' Brief
Public Court Documents
March 5, 1970

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Brief Collection, LDF Court Filings. McKisick v. Forrest City Arkansas School District No. 7 Appellants' Brief, 1970. 72e48dae-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4a150116-e45e-47fe-9b0d-02ac2b3adada/mckisick-v-forrest-city-arkansas-school-district-no-7-appellants-brief. Accessed April 27, 2025.
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V ****************************************************** UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 20,143 Civil ERIC McKI.SICK, et al., Appellants. vs. THE FORREST CITY, ARKANSAS, SCHOOL DISTRICT NO. 7, et al.,Appellees. Appeal from the United States District Court, Eastern District of Arkansas, Helena Division A P P E L L A N T S'______B R I E F JACK GREENBERG JAMES M. NABRIT, III NORMAN CHACHKIN Suite 2030 10 Columbus CircleNew York, New York 10019 JOHN W. WALKER PHILIP E. KAPLAN WALKER, ROTENBERRY, KAPLAN, LAVEY & HOLLINGSWORTH 1820 West Thirteenth Street Little Rock, Arkansas 12202 ATTORNEYS FOR APPELLANTS ************************************************************** t I N D E X PAGE Authorities Cite$................ ............... i Issue Presented..................... 1 Relief Sought....................... 1 Statement of Case................... 2 Statement of Point to be Argued. . . . . . . . . . 2 ARGUMENT The District Court Erred In Granting The Forrest City School District Additional Time in Which to Desegregate and Unitize Their Schools . . . . . . . . . . . . . . . . 3 CONCLUSION ........................................... 6 AUTHORITIES CITED Alexander v. Holmes County Board ofEducation, 396 U.S. 19, 24 L.Ed 2d 41 (1969) . . . 2,3,4,5,6 Carter v. West Feliciana Parish School Board, (No. 944)______U.S.______(1970), 24 L.Ed 2d 477 ..................................... 2,5 Green v. County School Board of New Kent County, Va., 391 U.S. 430 (1968).............. .2,4 Singleton v. Jackson Municipal Separate School District (No. 972), _____ U.S.______(1970), 24 L.Ed 2d 477 .............................. .. .2,5 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 20,143 Civil ERIC MtKlSICK, et al., Appellants, V S . THE FORREST CITY, ARKANSAS, SCHOOL DISTRICT NO. 7, et al., Appellees. Appeal from the United States District Court Eastern District of Arkansas, Helena Division APPELLANTS' BRIEF ISSUE PRESENTED Does the District Court have the power to grant or permit delay in the implementation of an effective school desegregation plan? RELIEF SOUGHT Appellants seek immediate vindication of their constitutional rights by a decree from this Court requiring (a) appellees to begin immediately to operate a unitary school system within which no person is to be effectively excluded because of race or color; (b) appellees to implement their existing and acceptable secondary and primary school deseg regation plan formulated with the assistance of the Department of Health, Education and Welfare which promises to eliminate immediately and permanently the remaining vestiges of segregation within the Forrest City school system."^ 1/AppeHants Motion for Summary Reversal pointed out, and we repeat here, that although portions of the HEW-Forrest City elementary zoning plan may fall short of completely disestab lishing a dual school system, implementation of that plan does promise significant hope in achieving that end, and any failings of the plan can be brought to the attention of the Court at a later time. Further the plan has the advantage of being capable of immediate implementation. STATEMENT OF CASE On February 3, 1970, this school desegregation appeal was docketed and a motion was filed by appellants seeking summary reversal of an order of the Honorable Oren E. Harris, United States District Judge, Eastern District of Arkansas, entered on January 15, 1970. This Court denied appellants' Motion for Summary Reversal but ordered the case placed for hearing on the April docket. Appellants submitted in their Motion for Summary Reversal a rather complete statement of the case which is hereby adopted by reference and made a part of this brief. STATEMENT OF POINT TO BE ARGUED The District Court Erred in Granting the Forrest City School District Additional Time in Which to Desegregate and Unitize Their Schools. Alexander v. Holmes County Board of Education, 396 U.S. 19, 24 L.Ed.2d 41 (1969); Carter v. West Feliciana Parish School Board (No. 944)______ U.S.______(1970), 24 L.Ed 2d 477; Green v. County School Board of New Kent County, Va., 391 U.S. 430 (1968) Singleton v. Jackson Municipal Separate School District (No. 972),____U.S.____(1970), 24 L.Ed 2d 477. - 2 - ARGUMENT THE DISTRICT COURT ERRED IN GRANTING THE FORREST CITY SCHOOL DISTRICT ADDITIONAL TIME IN WHICH TO DESEGREGATE AND UNITIZE THEIR SCHOOLS. The District Court initially found that Forrest City ". . . has failed to take necessary steps to effectively implement a desegregated unitary school system," (P. 2, District Court ORDER filed January 15, 1970). The Court also found that the reasons set forth by the school district in support of additional delay "shall no longer serve as deterrents to immediate compliance with the constitutional standard." As a result of these findings, the Court required Forrest City to present a desegregation plan which eliminated the dual busing system and the freedom of choice pupil assignment approach no later than the beginning of the second semester of the present school year. Faculty desegregation, so as to eliminate all vestiges of segregation, begun immediately and completed "no later than the commencement of the 1970-71 school year." Forrest City has submitted a plan for operation of its schools which makes only the most general promises to attempt to accomplish unification, and steps for this year are limited to a few teacher transfers. In a district where 65 percent of the pupils are transported to school each day, the plan does not call for any pupil composition change for the rest of this year. We contend that the District Court erred in applying the doctrine of Alexander v. Holmes County Board of Education, 396 U.S. 19, 24 L.Ed. 2d 41 (1969), in refusing or failing to order immediate implementation of desegregation at all levels and in granting any delay. First, the Court found -3 the existence of unlawful segregation and the need for remedy. Second, the Court specifically found that there were no valid legal obstacles to immediate desegregation. Third, there were valid desegregation plans developed by or with the approval of both Forrest City and HEW which could have been implemented in September, 1969, which would have equitably and permanently eliminated the vestiges of segregation in Setiss^-City. Green v . County School Board of New Kent County, Va., 391 U.S. 430 (1968). Delay granted by the District Court under these circumstances is beyond cavil clearly contrary to the law for "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." Alexander v. Holmes, supra. In Alexander, the Fifth Circuit had permitted delay in pupil desegregation until 1970-71. In reversing and requiring the thirty-three school districts involved to immediately unitize, the Supreme Court set out the new role of the appellate ?/courts. Courts of appeals were directed by the Supreme Court to "direct the schools . . . to accept all or part of the . . . recommendations of the Department of Health, Education and In apparent recognition that often the local district courts are slow to afford full relief to Negro plaintiffs, the Supreme Court required that appellate courts retain jurisdiction of these cases to insure that its orders were being complied with. District Courts were in effect stripped, of power to amend or modify appellate court rulings until or unless such amendments or modifications were made and/or approved by the appellate courts themselves. We submit that the facts of this and other recent school desegregation cases coming before this Court from the Eastern District of Arkansas, Pine Bluff and Helena Divisions, demonstrate the wisdom of the Supreme Court's ruling to shift from the district courts to the Courts of Appeals more of the power and responsibility to achieve desegregation. - 4 - Welfare, with any modifications which [the Court of Appeals] deems proper insofar as those recommendations insure a totally unitary school system for all eligible pupils without regard to race or color. (24 L.Ed.2d at p. 21). Forrest City is in no different legal posture from the numerous school districts involved in Alexander, for the Forrest City School Board previously represented to the Department of HEW that the schools would be desegregated by September, 1969, pursuant to a constitutionally acceptable plan. When the majority of the community resisted the plan, it was dropped and freedom of choice retained. Nor are the facts in Forrest City different from those in Carter v. West Feliciana Parish School Board (No. 944) ___ U.S.____(1970), 24 L.Ed 2d 477); and Singleton v. Jackson Municipal Separete School District (No. 972),____U.S.____(1970), 24 L.Ed 2d 477. In those cases, the Fifth Circuit had reversed district court orders deferring desegregation beyond the 1969-70 school year. The Fifth Circuit had ordered complete faculty desegre gation until September, 1970. The Supreme Court reversed, stating that, "Insofar as the Court of Appeals authorized deferral of student desegregation beyond February 1, 1970, that court misconstrued our holding in Alexander v. Holmes." 24 L.Ed. 2d at p. 479. The law is clear; public schools must immediately be unitized in all respects. The Supreme Court has effectively foreclosed all arguments for additional delay. But, even if the Supreme Court had not been so positive, the District Court gave no reasons to support delay of elementary pupil desegre gation or secondary pupil d&s-egregatjfcon. •' Clearly, Alexander stands - 5 for the proposition— at least— that after the District Court has ordered a desegregation plan into implementation it should not be dd-Iayed -for :m y reason. Finally, the District Court did not find that the HEW plans would not work. Thus, for no apparent cause or explanation other than his gratuitous suggestion about zoning, the Court in effect summarily rejected the plans before it which had the imprimatur of the appellees upon them', expecially for the high and junior high schools. Against this background, it was clear error for the District Court to reject the workable HEW plans and to require new plans which may not work. The remarks of Justices Harlan and White are particularly helpful on the subject; If Department recommendations are already available the school districts are to bear the burden of demonstrating beyond question, after a hearing, the unworkability of the proposals, and if such proposals are found unworkable, the Courts shall devise measures to provide the required relief. Alexander v. Holmes, supra, 24 L.Ed. 2d 481. There is no demonstration that the HEW recommendations here involved will not work and no justification for suspension or denial of relief required under Alexander. Reversal is clearly required and this Court must, we submit, require immediate implementation of the HEW plans, with appropriate modifications while it retains jurisdiction. If Forrest City wishes to modify or amend the HEW plans, such modifications must be granted or made by this Court rather than by the District Court. CONCLUSION For the foregoing reasons the judgment of the District Court should be reversed. Respectfully submitted, JACK GREENBERGJAMES M. NABRIT, III NORMAN CHACHKINSuite 2030 10 Columbus Circle New York, New York 10019 JOHN W. WALKERPHILIP E o KAPLAN WALTER, ROTENBERRY, KAPLAN, LAVEY & HOLLINGSWORTH 1820 West 13th Street Little Rock, Arkansas 72202 ATTORNEYS FOR APPELLANTS BY. Philip E.KapSan _,-WV Philip E. Kapian CERTIFICATE OF SERVICE I hereby certify that I have this 5th day of March, 1970, served a copy of the above and foregoing Brief upon the attorneys for appellees, Attention: Mr. E. J. Butler, Attorney, P. 0. Box 830, Forrest City, Arkansas 72335, and Mr. Harold Sharpe, P. 0. Box 924, Forrest City, Arkansas 72335, by depositing same in the United States mail, postage prepaid, addressed to them as herein. - 7 -